Citation Nr: 1030636
Decision Date: 08/16/10 Archive Date: 08/24/10
DOCKET NO. 06-24 163 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUE
Entitlement to service connection for left ear hearing loss.
REPRESENTATION
Appellant represented by: John S. Berry, Attorney
ATTORNEY FOR THE BOARD
B. Berry, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1968 to January
1973.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from a rating decision dated in April 2006 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska.
The Veteran appealed the Board's April 2008 decision denying the
Veteran's claim of entitlement to service connection for left ear
hearing loss to the United States Court of Appeals for Veterans
Claims (Court). In March 2009, the Veteran's attorney and a
representative of the VA Office of General Counsel, on behalf of
the Secretary, filed a Joint Motion for Remand (Joint Motion).
In a March 2010 Order, the Court granted the motion and remanded
the matter to the Board for action consistent with the Joint
Motion.
FINDINGS OF FACT
The evidence of records shows that the Veteran's left ear hearing
loss disability existed prior to active military service and it
did not increase in severity during military service.
CONCLUSION OF LAW
The Veteran's pre-existing left ear hearing loss disorder was not
aggravated by military service. 38 U.S.C.A. §§ 1110, 1153 (West
2002); 38 C.F.R. §§ 3.303, 3.306 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty
on the United States Department of Veterans Affairs (VA) to
notify and assist a claimant in developing a claim. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a
complete or substantially complete application for benefits, VA
is required to notify the claimant and his or her representative,
if any, of any information, and any medical or lay evidence, that
is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183
(2002). Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; (3)
that the claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession that
pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1).
The requirement of requesting that the claimant provide any
evidence in his possession that pertains to the claim was
eliminated by the Secretary during the course of this appeal.
See 73 Fed. Reg. 23353 (final rule eliminating fourth element
notice as required under Pelegrini II, effective May 30, 2008).
Thus, any error related to this element is harmless. This notice
must be provided prior to an initial unfavorable decision on a
claim by the agency of original jurisdiction (AOJ). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi,
18 Vet. App. 112 (2004).
With regard to claims for service connection for a disability,
the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of the claim: (1) veteran
status; (2) existence of a disability; (3) a connection between
the veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus,
upon receipt of an application for a service-connection claim, VA
must review the information and the evidence presented with the
claim and provide the claimant with notice of what information
and evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements of
the claim as reasonably contemplated by the application including
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded. Id.
After careful review of the claims folder, the Board finds that
VCAA letters dated in October 2005 and March 2006 satisfied the
duty to notify provisions and it was provided to the Veteran
prior to the initial AOJ decision. 38 U.S.C.A. § 5103(a); 38
C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002). In this regard, the October 2005 letter informed the
Veteran of what evidence was required to substantiate his service
connection claim for a hearing loss disability. This letter also
informed him of his and VA's respective duties for obtaining
evidence. The VCAA letter requested the Veteran to provide any
evidence in his possession and he was informed that it was
ultimately his responsibility to ensure that VA received any
evidence not in the possession of the Federal government. A
letter dated in March 2006 provided the Veteran with notice of
the rating criteria and effective date provisions pertinent to
the Veteran's claim.
Regarding VA's duty to assist, the Board finds that VA has
fulfilled its duty to assist the Veteran in making reasonable
efforts to identify and obtain relevant records in support of the
Veteran's claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
The claims file contains the Veteran's service treatment records,
a VA examination dated in March 2006 and two VHA medical expert
opinions dated in October 2009 and April 2010.
The March 2006 VA examination report reflects that the examiner
conducted a review of the Veteran's claims file in addition to
obtaining oral history and a physical examination of the Veteran.
Following the above, the examiner provided a diagnosis and an
opinion as to the likelihood of the Veteran's left ear hearing
loss being related to military service. The examiner provided a
clear rationale for his opinion. Accordingly, the Board
concludes that the examination is adequate for rating purposes.
See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (VA must
ensure that any VA examination undertaken during an appeal is
adequate for rating purposes).
Furthermore, there is no indication in the file that there are
additional relevant records available that have not yet been
obtained. Therefore, the Board finds that all relevant facts
have been developed properly and sufficiently in this appeal and
no further development is required to comply with the duty to
assist the Veteran in developing the facts pertinent to his
claim.
II. Merits of the Claim for Service Connection
The Veteran claims that his previous bilateral hearing loss and
tinnitus was related to military service. He asserted that he
was exposed to loud noise from aircrafts landing and taking off
during his military service. The RO granted service connection
for right ear hearing loss and tinnitus in an April 2006 rating
decision. However, the RO denied service connection for left ear
hearing loss. The Veteran appeals this decision.
Service connection may be granted to a veteran for a disability
resulting from a disease or injury incurred in or aggravated by
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38
C.F.R. § 3.303 (2009). For the showing of chronic disease in
service, there must be a combination of manifestations sufficient
to identify the disease entity and sufficient observation to
establish chronicity at the time. If chronicity in service is
not established, evidence of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b). Service connection may be granted for a disease
diagnosed after discharge when all the evidence, including that
pertinent to service, establishes that the disease was incurred
in service. 38 C.F.R. § 3.303(d). In addition, service
connection may be presumed for certain chronic diseases that are
manifested to a compensable degree within one year after
separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002);
38 C.F.R. §§ 3.307, 3.309(a) (2009).
In general, to establish service connection for a claimed
disorder, there must be (1) medical evidence of current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease or
injury; and (3) evidence of a nexus between the claimed in-
service disease or injury and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999); Degmetich v.
Brown, 104 F.3d 1328 (Fed. Cir. 1997). Such determination is
based on an analysis of all the evidence of record and evaluation
of its credibility and probative value. Baldwin v. West, 13 Vet.
App. 1, 8 (1999).
A pre-existing disease or injury will be considered to have been
aggravated by military service where there is an increase in
disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38
C.F.R. § 3.306(a) (2009). Clear and unmistakable evidence is
required to rebut the presumption of aggravation where the pre-
service disability underwent an increase in severity during
service. 38 C.F.R. § 3.306(b).
VA law provides that a Veteran is presumed to be in sound
condition, except for defects, infirmities or disorders noted
when examined, accepted, and enrolled for service, or where clear
and unmistakable evidence establishes that an injury or disease
existed prior to service and was not aggravated by service. 38
U.S.C.A. §§ 1111, 1132, 1137. The presumption of soundness
attaches only where there has been an induction examination
during which the disability about which the Veteran later
complains was not detected. See Bagby v. Derwinski, 1 Vet. App.
225, 227 (1991). The regulations provide expressly that the term
"noted" denotes "[o]nly such conditions as are recorded in
examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory
of pre-service existence of conditions recorded at the time of
examination does not constitute a notation of such conditions."
Id. at (b)(1).
In essence, when no preexisting condition is noted upon entry
into service, the Veteran is presumed to have been sound upon
entry. The burden then falls on the government to rebut the
presumption of soundness by clear and unmistakable evidence that
the Veteran's disability was both preexisting and not aggravated
by service. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370
F.3d 1089 (Fed. Cir. 2004). The Veteran is not required to show
that the disease or injury increased in severity during service
before VA's duty under the second prong of this rebuttal standard
attaches. Id. The government may show a lack of aggravation by
establishing that there was no increase in disability during
service or that any increase in disability was due to the natural
progress of the preexisting condition. 38 U.S.C.A. § 1153. If
this burden is met, then the Veteran is not entitled to service-
connected benefits. However, if the government fails to rebut
the presumption of soundness under section 1111, the Veteran's
claim is one for service connection. This means that no
deduction for the degree of disability existing at the time of
entrance will be made if a rating is awarded. See 38 C.F.R. §
3.322.
On the other hand, if a preexisting disorder is noted upon entry
into service, the Veteran cannot bring a claim for service
connection for that disorder, but the Veteran may bring a claim
for service-connected aggravation of that disorder. In that
case, section 1153 applies and the burden falls on the Veteran to
establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417
(Fed. Cir. 1994). If the presumption of aggravation under
section 1153 arises, the burden shifts to the government to show
a lack of aggravation by establishing "that the increase in
disability is due to the natural progress of the disease." 38
U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at
1417; Wagner, 370 F. 3d at 1096.
The July 1968 entrance examination noted that the Veteran's ears
were normal and his hearing and ears were given a numeral
designation of "1" under PULHES, which indicates that the
Veteran's ears were at a high level of fitness and the Veteran
was medically fit for any military assignment. The Veteran's
entrance examination noted that it used the American Standards
Association (ASA) units. Therefore, to compare the threshold
hearing levels to later examinations, the ASA units must be
converted to the International Standard Organization (ISO) units.
The medical expert opinion in April 2010 provided a table used to
convert ASA calibration to ISO calibration. The table revealed
that to convert ASA calibration to ISO calibration one adds the
following decibels at each frequency: 10 dB at 500 Hz, 10 dB at
1000 Hz, 8.5 dB at 2000 Hz, 6 dB at 3000 Hz and 9.5 dB at 4000
Hz. The original ASA units will be shown in parenthesis. The
Veteran's entrance examination shows the following threshold
hearing levels for the left ear as converted from ASA units to
ISO units: 20 dB (5 dB) at 500 Hz, 10 dB (0 dB) at 1000 Hz, 19 dB
(10 dB) at 2000 Hz, 11 dB (5 dB) at 3000 Hz, and 40 dB (30 dB) at
4000 Hz. In four out of the five frequencies the Veteran's
hearing is considered normal as the hearing threshold is 20 dB or
below. However, the entrance examination shows that the Veteran
had hearing loss in the Veteran's left ear of 40 dB at 4000 Hz.
As the entrance examination shows that the Veteran had hearing
loss in the left ear of 40 dB in one of the required frequencies
under VA regulations, the evidence reveals that the Veteran had a
hearing loss disability under VA regulations prior to military
service. See Hensley, 5 Vet. App. at 158. Therefore, a left ear
hearing loss disability was noted upon the entrance examination
and the presumption of soundness does not apply. See 38 U.S.C.A
§ 1111, 1137 (West 2002).
If a preexisting disorder is noted upon entry into service,
service connection may be granted based on aggravation of that
disorder during service. 38 U.S.C.A § 1153; 38 C.F.R. §
3.306(b); see Wagner, 370 F.3d at 1096. A preexisting injury or
disease will be considered to have been aggravated in military,
naval or air service, where there is an increase in disability
during such service, unless there is a specific finding that the
increase in disability is due to the natural progress of the
disease. 38 U.S.C.A § 1153; 38 C.F.R. § 3.306(a). Independent
medical evidence is needed to support a finding that the
preexisting disorder increased in severity in service. See
Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); Crowe v. Brown,
7 Vet. App. 238, 246 (1994).
The medical evidence in the service treatment records do not
indicate that the Veteran's left ear hearing disability increased
in severity during military service. In this regard, the
audiometer results listed in the separation examination dated in
January 1973 reveal that the Veteran's left hearing was the
following: 15 dB at 500 Hz, 15 dB at 1000 Hz, 15 dB at 2000 Hz,
15 dB at 3000 Hz, and 30 dB at 4000 Hz. It appears that the
Veteran's hearing acuity was essentially the same as measured in
the enlistment examination. Furthermore, two separate VA medical
experts determined that the Veteran's left ear hearing loss was
not aggravated during military service. Specifically, the VA
medical expert in October 2009 noted that there was no
significant change in hearing for the left ear from the time of
enlistment to military separation and that it is less likely than
not that the left ear hearing was aggravated beyond normal
progression during service. Similarly, the VHA medical expert in
April 2010 determined that the audiogram results in the entrance
examination reveals that the Veteran had a left ear hearing
disability at 4000 and 6000 Hz prior to military service. She
provided the opinion that the pre-existing left hearing
disability at 4000 and 6000 Hz was stable at discharge. She
noted that the frequencies at 4000 Hz and 6000 Hz are most
susceptible to acoustic trauma and would likely show decreased
sensitivity, i.e., increased hearing thresholds, if additional
acoustic trauma occurred.
Based on the foregoing, the Board finds that the preponderance of
the evidence shows that the Veteran's left ear hearing loss
disability existed prior to service and it was not aggravated
during military service. Accordingly, entitlement to service
connection for left ear hearing loss is denied.
ORDER
Entitlement to service connection for left ear hearing loss is
denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs